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IJTIHAD. In general usage, the Arabic word ijtihad denotes the utmost effort, physical or mental, expended in a particular activity. In its technical legal connotation, it denotes the thorough exertion of the jurist’s mental faculty in finding a solution for a case of law. During the first century of the Hijrah (seventh century CE), when religious law was still being elaborated, and when the secular administrative and customary practices had not yet become integrated with the religious legal system, ijtihad was closely associated with ray, expedient and free reasoning in the sphere of law. Ijtihad alra’y; an expression that occurs frequently in this early period, thus stood, in one sense, in contrast to `ilm or knowledge of the revealed texts and authoritative traditional practices and reasoning on the basis of these. In another sense, ijtihad stood alongside `ilm in that it represented an intellectual quality that supplemented knowledge of the material sources of the law, whether revealed texts or prevalent administrative and customary practices. In this period complete islamization had not yet taken place, and so ijtihad linked with ra’y was still a legitimate activity; the term carried the connotation of exerting one’s effort on behalf of the Muslim community and its interests (al-ijtihad fi sabil al-Muslimin).

In the second century (eighth century CE) ijtihad was gradually dissociated from ray as the latter increasingly fell under the category of objectionable practices. Indeed, a correlation exists between the gradual ousting of ra’y as a tool of free and discretionary reasoning and the growing perception that ijtihdd represented a systematic method of interpreting and reasoning about the law on the basis of authoritative texts. Muhammad ibn Idris alShafi i (d. 821), the founder of the Shafi`i school of law, was the first to make a clean break from ray and to adopt ijtihad as a methodology synonymous with qiyas, an umbrella term encompassing a number of legal inferences.

In the eighth century ijtihad was also used in the sense of “technical estimate” or “fair judgment,” particularly “an effort at setting the value of a thing,” as in estimating due compensation or damages. This meaning of the term was to persist for centuries in the realm of substantive law.

With the elaboration of legal theory (usul al filth) toward the beginning of the tenth century, the meaning and scope of ijtihad finally became defined. Ijtihad now came to signify the utmost intellectual effort of the mujtahid (one qualified to practice ijtihdd) to reach a solution or a rule (hukm) on a religious matter. Religious matters were deemed to be either rational or legal. The former constituted the bulk of theology, dealing with such issues as the creation or eternity of the world, the proofs for the existence of God, God’s attributes, oneness, and so on. Since evidence pertaining to these matters was thought to be conclusive and not subject to contradiction, the results of ijtihad in theology could only be certain; here, there was no place for either probability or conjecture.

In legal matters, by contrast, ijtihad was restricted to the realm of probability. Wherever the authentic texts were unambiguous with regard to a certain matter, ijtihad had no role to play, since God had made his decree clear. The certainty of the knowledge that God had unambiguously stipulated his judgment on a particular matter was thought to preclude any human attempt at investigating the law concerning that matter. The duties to pray and to pay the alms-tax are two examples in point.

The province of ijtihad was further restricted to exclude those cases that had become subject to consensus (ijma’), since the sanctioning authority of this instrument was thought to render the judgments of such cases certain, irrevocable, and thus not subject to juristic interpretation. It therefore followed that ijtihad in legal matters must be confined to the gray areas of the law, where textual certainty was absent and where human reasoning on the basis of the texts might uncover the law as intended by God. This is why ijtihad is defined as the comprehensive exercise of the jurist’s mental faculty in reaching a legal ruling that is inferential and thus probable (zanni). [See also Consensus.]

The probability that is necessarily entailed by inferential reasoning clearly suggests that the outcome of ijtihad is fallible, and Sunni legal theory admits this. Although ijtihad may result in rulings that do not correspond to the law as intended by God, it is deemed a duty incumbent on those who are qualified to perform it. The very practice of ijtihdd is a religious duty, and a mujtahid who fails to fulfill it is thought to have sinned. To mistake the law as lodged in the mind of God, however, does not constitute a sin, because to demand that humans know with certainty what is concealed in the mind of God would amount to charging them with a responsibility far greater than they could assume. All aspects of life must be regulated by the shad `ah, and therefore ijtihad must be commensurate with the obligation and need to attempt to discover the law; it is the attempt that is a religious duty-to be rewarded when made and punished when omitted-and not the success of that attempt. Accordingly, the great majority of scholars have espoused the doctrine that all attempts of ijtihdd are rewarded by God, and those which have succeeded in uncovering the true law are doubly rewarded. This doctrine, however, seems to represent a justification of ikhtildf al fuqaha’, the institutionalized differences among jurists’ doctrines.

Islamic legal theory has stipulated the requirements a jurist must fulfill in order to qualify as a mujtahid. Proficient knowledge of theology was deemed a necessary condition since it provides the proofs for the authority of the revealed texts that are the material sources of the law. To qualify as a mujtahid the jurist must also gain a comprehensive knowledge of legal theory (usul al filth), which elaborates the interpretative principles of legal language (e.g., the imperative, ambiguous, metaphorical, general, and particular) and the methods of investigating the authenticity and transmission of texts, particularly prophetic traditions. Usul al filth also deals with the theory of abrogation, which includes a discussion as to what texts repeal others or are repealed by them. In addition, the jurist must have masterly knowledge of the conditions under which consensus may be reached, and he must know what parts of the law have become subject to such consensus. Finally, no ijtihad is possible without a sophisticated capability for legal reasoning or without thorough knowledge of the Arabic language, in which the material sources of the law are written.

The great majority of legal theoreticians hold that these qualifications are required of a jurist who wishes to embark on ijtihad in all spheres of the law. But those jurists who aim to practice ijtihdd in a limited area of the law need not fulfill all the requirements, only those relative to the methodological principles and the textual materials that pertain to the case at hand.

By the beginning of the tenth century, the Sunni legal schools (madhhabs) of Islam had reached a level of development where all essential questions on matters of positive law had been addressed. The detailed elaboration of the judicial system by this time represented a legal stability that was to continue until the premodern encounter with the West. This stability meant the continuity and persistence of the legal tradition, where society accepted the broad lines of the law as laid down by the early masters. It necessarily follows that adhering to the law elaborated in successive centuries would progressively restrict the scope of ijtihad.

This fact gave rise to the perception, prevalent among many Western scholars and modern Sunni Muslims alike, that the so-called “gate of ijtihad” was closed at the beginning of the tenth century. Two elements further complicate this perception. It has often been suggested that the closure of the gate amounted to a complete ban on ijtihad, and that Muslim jurists themselves reached a consensus to that effect. This perception, though prevalent for nearly two centuries, has been shown by recent scholarship to be entirely without foundation. There exists no evidence of such a closure either in the tenth century or thereafter, and there certainly was no consensus on it. To the contrary, evidence shows that the practice of ijtihad continued throughout the centuries, although on a smaller scale than before because of the stability the legal system had attained.

The narrowing of the scope of creative legal reasoning after the eleventh century gave rise to various classifications in Sunni legal literature, in which jurists were ranked according to their ability to practice ijtihdd. One predominant classification credited the eponyms of the legal schools with the distinction of being absolute mujtahids (mujtahid mutlaq) who were capable of laying down a methodology of the law and of deriving from it the positive doctrines that were to dominate their respective schools. Next came the mujtahids who operated within each school (mujtahid muntasib or mujtahid ftalmadhhab), who followed the methodology of their eponym but proffered new solutions for novel legal cases. The lowest rank belonged to the muqallid, the juristimitator who merely followed the rulings arrived at by the mujtahids without understanding the processes by which these rulings were derived. Between the ranks of mujtahids and muqallids there were distinguished other levels of jurists who combined ijtihad with taqlid. While it was universally acknowledged that the absolute mujtahid was a phenomenon of the past, incapable of repetition, Muslim scholars continued to maintain that all other levels were attainable. Indeed, countless jurists from the tenth century and to the early nineteenth century were considered to have attained the rank of mujtahid within their schools.

In Shi’i Islam, discussions about “closing the gate of ijtihdd” never arose, because non-Zaydi Shi`is in general, and the Twelvers in particular, deem ijtihad to be an ongoing process. It is noteworthy that the ShMs, like the Sunnis, accept the Qur’an as the primary material source of law, although they rely on a different set of prophetic traditions. While the Sunnis believe in consensus as the infallible source of truth after the age of the Prophet, the Twelvers take the pronouncements of the twelve infallible imams as a continuing source of truth. This source, expressed in the definite statements of the imams, increases the level of certainty in the law and as a consequence safeguards to a higher degree than in Sunnism the element of human intellection. Accordingly, Twelver Shiism acknowledges human reasoning and intellect as one of the legal sources that perfectly supplement the revealed texts.

Beginning in the seventeenth century, discourse on ijtihdd as a binary opposite of taqlid gained added significance in Sunni Islam. No longer taken for granted, ijtihad and the need to practice it in the legal system became the focal point in the writings of eminent legists. Among the traditional reformers who argued the need to renew ijtihdd were Shah Wall Allah al-Dihlawl (d. 1762), Ibn Mu’ammar (d. 1810), Muhammad ibn `Ali al-Shawkani (d. 1832), and Muhammad ibn `All alSanfisi (d. 1859). Their emphasis on the centrality of ijtihdd amounted to a criticism of taqlid, which they deemed a heretical religious innovation when practiced by learned jurists. Taqlid, they maintained, is lawful only when applied on behalf of laymen who need the guidance of legal scholars in running their mundane and religious affairs. For the learned jurist, the ultimate authority lies not in the doctrines of past masters, but rather in the Qur’an and the sunnah, which must be the jurist’s sole frame of reference.

During the second half of the nineteenth century and the early decades of the twentieth, the reformist religious movement gained momentum against the backdrop of the massive introduction of European codes in place of the shari`ah. The Salafi movement, which stressed the need to reinterpret Islamic teachings with direct reference to the Qur’an and the sunnah, particularly called for abandoning taglid in favor of ijtihad. Wherever the textual sources offer explicit statements on matters of faith, worship, and personal status, there is no room for ijtihdd. However, all other matters of a practical nature, affecting the affairs of the Muslim community and public life and policy, are subject to reinterpretation by means of ijtihdd. Those who are capable of undertaking ijtihad are the legitimate holders of authority, the ahl al-hall wa-al-`aqd (or ulu al-amr), who decide on behalf of Muslims and act in their best interests. But whereas traditional doctrines recognize the absolute authority of the mujtahid and his direct responsibility before God, modern reformists deem the mujtahids’ authority to be derived from that of the community. Accordingly, if the ijtihad of ahl al-hall wa-al`aqd failed to represent the will and wishes of the community, it would be considered invalid. At the same time, the validity of ijtihad, as expressing the will of the community, hinges on the premise that the outcome of ijtihad shall not contradict the spirit and letter of the revealed texts.

The theories of these reformists, however, remained without practical application, for the reformists lacked the power and the means to put their ideas into effect. It was the state apparatus and the political elite that dictated the actual legal reforms of the twentieth century. Here, both traditional and reformist theories of ijtihad were entirely ignored. Legal reform was carried out mainly through the introduction of novel administrative and procedural regulations, as well as through the implementation of an eclectic principle whereby new sets of laws were expediently gathered piecemeal from a variety of legal schools and jurists. In these reforms, ijtihad was resorted to infrequently, when neither administrative regulations nor eclecticism could serve. Perhaps the most prominent example of this form of ijtihad may be found in the Tunisian Law of Personal Status (1957), whereby polygyny was declared prohibited on the grounds that the Qur’an allows a man to marry a second wife if he can treat both with complete impartiality. The Tunisian legislators stipulated that under modern conditions such impartiality is a practical impossibility; therefore, they argued, allowing polygynous marriage in the modern world would blatantly contravene the prescriptions of the Holy Book.

The ijtihad of modern reformers-if it can indeed be so called-remains without methodological and philosophical foundations. Like the reformers’ other means of changing the law, their reinterpretation is still based on expediency, without due consideration of the intellectual integrity and systemic consistency of the law. They have set aside the traditional legal methodology, but they have not, at the same time, attempted to fashion a new methodology that can sustain the present and future need for legal change. Although such attempts have not yet been initiated in the Muslim world, there have been during the past decade or two a number of voices calling for a reformulation of usul al-fiqh with a view toward fashioning a neo-ijtihad methodology.

[See also Ahl al-Hall wa-al-`Aqd; Law, article on Legal Thought and Jurisprudence; Taqlid; Usul al-Fiqh.]

BIBLIOGRAPHY

Bravmann, M. M. The Spiritual Background of Early Islam. Leiden, 1972. Includes a detailed semantic analysis of the early meaning of ijtihad; see pages 188-194.

Coulson, Noel J. A History of Islamic Law. Edinburgh, 1989. Provides a succinct discussion of ijtihad in modern legal reform in the last two chapters.

Hallaq, Wael B. “Was the Gate of Ijtihad Closed?” International Journal of Middle East Studies 16 (1984): 3-41.

Hallaq, Wael B. “On the Origins of the Controversy about the Existence of Mujtahids and the Gate of ljtihad.” Studia Islamica 63 (1986): 129-141.

Schacht, Joseph. The Origins of Muhammadan Jurisprudence. Oxford, 1975. Still the definitive work on the development of ijtihad and related concepts in the early period.

Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1979. Chapter to articulates traditional views on the closure of the gate of ijtihad.

Shafi`i, Muhammad ibn Idris. Al-Risdla. Edited by Ahmad Shdkir. Cairo, 1892. English translation by Majid Khadduri, Al-Imam Muhammad ibn Idris al-Shafi`i’ s al-Risala ft Usul al-Fiqh. 2d ed. Cambridge, 1987.

Shiran, Abu Ishaq Ibrdhim. Shark al-Luma’. Edited by Abdel-Majid Turki. 2 vols. Beirut, 1988. Classical work on legal theory and ijtihad.

Weiss, Bernard G. “Interpretation in Islamic Law: The Theory of Ijtihad.” American Journal of Comparative Law 26 (Spring 1978): 199-212.

WAEL B. HALLAQ

Azhar Niaz Article's Source: http://islamicus.org/ijtihad/
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